Re-Examining Re-Education Through Labor

Public debate is growing in China over the country’s decades-old practice of sending alleged troublemakers to labor camps for years at a time without formal arrest or trial. The fact that the system, known as “re-education through labor” (laojiao, or RETL), is being debated openly in China has been portrayed in some quarters as evidence of the increasing power of public opinion to bolster rule of law in the country.

But is there any evidence of substantive reform?

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A screenshot shows a post announcing the release from labor camp of Tang Hui, a mother pushing for harsher punishment of seven men who allegedly raped her daughter, published on August 10, 2012 on the Xinhua news agency’s account on the Sina Weibo microblogging service.

Controversy over laojiao broke out into the open recently following a social media storm over the case of Tang Hui, the mother of a young girl who had been kidnapped, raped and sold into prostitution by seven men.

Tang was sentenced by the police without a trial to 18 months of laojiao in August.Her offense? She had vigorously and publicly protested against police delay in responding to the crime and demanded death sentences for all the men involved. (Two did receive death sentences and the others received lengthy sentences.) Public outcry not only led to Tang Hui’s release so that she could be “re-educated without detention,” but also fueled support for public discussion of the need to reform the system and, in the words of one Bloomberg report, “demonstrated the occasional power of microblogged public opinion.”

The notorious system of using laojiao as an administrative punishment for minor crimes was created in the mid-1950s, first to deal with persons who were not “politically reliable” but had not committed crimes for which they could be sent to jails or “labor reform camps.” It was quickly expanded to those who had committed minor criminal offenses and who were sentenced to “control” under police supervision in their communities. Laojiao was subsequently applied to “rightists” and other categories of offenders such as habitual criminals, employees who did not obey job assignments, and released criminals who had “endangered public order.”

By 1960, the system had been expanded to the point that sentences could be imposed by police on the recommendation of government departments, employers or heads of families. In the early 1960s, the government also sought to control expansion of the system, and the term of punishment was fixed at between two and three years. The use of laojiao declined during the Cultural Revolution, and thereafter the management of the camps was transferred to the Ministry of Justice, while the police remained in charge of deciding whether to apply the punishment.

Since the end of the Cultural Revolution, there has been a vast explosion in the number of offenses that can lead to laojiao. Hong Kong University legal scholar Fu Hualing, observes that the punishment “is elastic enough to include most, if not all, offenses” and “nothing stops the police from imposing laojiao to whatever eligible offences that have been authorized by laws, regulations and policies.

The case of Tang Hui illustrates the extent to which police may punish not just petty criminals, but “petitioners and other political irritants” as Bloomberg put it. For example, Tang was accused of “seriously disturbing the social order and exerting a negative impact on society.”

The punishment inflicted on her was so excessive that the furor over her case was even reported in the state-run China Daily, which noted that over 700,000 posts about the case had appeared on Sina Corp.’s popular Weibo microblogging service.

The reaction to Tang Hui’s punishment added energy to public calls for reform or for abolition of RETL. In August, ten lawyers from different cities sent an open letter to the Ministries of Public Security and Justice, arguing that RETL leads to abuse of power. The criticisms provoked many microblogged calls for its abolition, although one of the lawyers who initiated the letter was quoted by The Wall Street Journal as warning about the difficulty of abolishing the system any time soon. Instead, he said, the writers of the letter were calling for “technical adjustments.”

How likely is there to be real reform of the laojiao system?

Experimentation with alternatives to the current system are already under way. Late last month, China’s Economic Observer reported that four cities—Nanjing, Lanzhou, Zhengzhou and Jinan— had begun pilot testing of a a replacement system called ‘”education and correction of violations,” which would have, as a law professor and member of the National People’s Congress told the newspaper, “a smaller scale and more reasonable procedures.” That professor mentioned recent “official discussions” which have not agreed on which government agency that should exercise authority over the system. The report added that Nanjing had established a task force to consider a new system, headed by the city’s police chief and including officials from the city’ bureaus concerned with justice, civil affairs, the courts and prosecutors.

Aside from that, however, little progress has been made. A draft law was included in the National People’s Congress legislative plan in 2005 that would give power to the courts. But according to the investigative business magazine Caijing, public security departments objected to the proposed legislation, and consideration of it has repeatedly been shelved.

Law reformers and public opinion do not concur on how laojiao should be modified to add procedural justice as one of its elements and to implement a more effective emphasis on the rehabilitation of petty offenders. What, for example, should be the role of the courts? Some Chinese legal scholars still support their exclusion in administering justice to some offenders.

China must “retain a system where small-time trouble-makers could be punished without recourse to the courts,” observes Jiang Mingan, a law professor at Peking University who is himself an advocate of procedural controls over the exercise of government power. But even the presence of a debate over laojiao suggests a significant progress. At the very least, recent public comment of the practice suggests that debate over the merits of the system will continue, and could even stimulate serious consideration of genuine reforms.

Stanley Lubman, a long-time specialist on Chinese law, is a Distinguished Lecturer in Residence at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).

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